Sidney Foster, convicted for murder in 1975, is appealing his sentence on the grounds that the judge in the case violated Foster's right to due process when he used a homophobic slur at the sentencing hearing. Following its dismissal by the First District Appellate Court, the case is being appealed to the Illinois Supreme Court.

This is the fifth post-conviction appeal in state court for Foster, who is represented by the Cook County public defender's office. The petition was initially filed in 2003, with Foster representing himself. The public defender's office was appointed to the case in 2004.

Foster was found guilty of the 1973 killing of Vivian Patterson, with whom he had lived for more than two years. According to the appellate court's recent decision, Patterson's 12-year-old son, Solomon Hudson, testified during the murder trial that Foster had "forced him to engage in homosexual behavior."

In December 1973, after expressing concerns to an acquaintance that Patterson was planning on moving away and taking Hudson with her, Foster allegedly borrowed a friend's gun and murdered Patterson. He then allegedly paid two men to dispose of her body, which was discovered, dismembered, in the trunk of a car outside Foster's apartment in January 1974.

During and since the trial, Foster maintained his innocence. The latest appeal, however, does not contest the facts of the case. Rather, it centers on language used by Judge Frank Barbaro in the sentencing phase of Foster's trial.

After a jury found Foster guilty, Barbaro sentenced him to a term of between 125 and 250 years in prison. In explaining his sentence, Barbaro called Foster's actions "one of the most heinous and vicious crimes" he had seen.

The judge said, "The evidence showed that the defendant willfully concealed and calculated for his desire and lust for a young man, Solomon Hudson, did commit the crime of murder when he felt the victim, the mother might take away this boy, the defendant committed the violation of the law. He then, under his direction, became a fagot [ sic ] in the sense that he led two young men down the path of crime to do his bidding, not for a monetary reward to him, the defendant, but so that he may continue his desire and lust, and under his control and direction had two young men dismember the body of Vivian Patterson."

In the decision recently published by the appellate court, Foster is referred to as "openly homosexual." And the court said, "Throughout the period [ of the murder and trial ] , the defendant considered himself to be a transsexual; that is, he felt psychologically that he was a woman in a man's body." Windy City Times' attempts, through the Public Defender's office, to learn how Foster currently self-identifies were unsuccessful. Given this uncertainty, this article follows Foster's attorneys in referring to Foster with "he" and "him."

Foster and his lawyers claim that anti-gay bias was a motivation behind the sentence given by Barbaro, who was notoriously tough: after his death in 1997, a Chicago Tribune obituary noted that the judge had earned the nickname "Bar B-Q Barbaro" for his harsh sentencing practices. Foster is asking the Illinois Supreme Court to reverse the appellate court's decision and remand the case for a new sentencing hearing.

"We want them to take a stand," said Lester Finkle, a lawyer with the public defender's office. Finkle oversees the legal resources division, which represents indigent clients in post-conviction and appellate cases. "If a sentence is imposed out of bias, out of ignorance," he said, "you have to revisit [ it ] ."

The appellate court decision, which was handed down in June, focused on the number of petitions Foster has already made to both state and federal courts. " [ T ] he state's interest in finality," the decision read, "trumps the defendant's desire to litigate an issue that, despite his cognizance of it for more than three decades, neither he nor his prior counsel raised until 2003.

"The Act [ that allows for post-conviction appeals ] does not create a hit-or-miss process for defendants to repeatedly file post-conviction petitions raising new issues until, by a combination of luck and the process of elimination, a potentially meritorious one is argued."

Finkle said that there could have been any number of reasons for Foster to wait so long to appeal a sentence based on the claim of bias. That it took 35 years and four exhausted post-conviction appeals to raise these specific concerns "may not have been Mr. Foster's fault," he said. For instance, "he may not have had access to transcripts."

Mark Wojcik, a professor at the John Marshall Law School, echoed Finkle's observations when he talked with Windy City Times. "The decision" by the appellate court, said Wojcik, "showed a lot of problems constructing a complete record."

One such problem was that an earlier record of the trial was incomplete: it lacked the testimony of Solomon Hudson, the boy with whom Foster is alleged to have had a forcible sexual relationship.

The appellate court's decision said that after Foster's lawyers "discovered an original copy of the record of proceedings in the circuit court warehouse," the trial record was completed. It disputes the notion, though, that Foster didn't have access to his record sufficient to file an appeal, writing, " [ T ] here is no denying that his counsel had the record necessary to formulate a postconviction petition."

Wojcik said that he doubted the Illinois Supreme Court would reverse the lower court's ruling. "If he was challenging the evidence," Wojcik said, "there would be more to the argument."

But he said that the case is a good example of the rapid evolution of the judiciary over the past 35 years: The appellate court wrote that it "does not question the outrage expressed" by Foster's petition, and characterized the slur as "offensive and derogatory."

Wojcik pointed out that Barbaro used the term "faggot" only two years after homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders ( DSM ) , the guide used by medical practitioners to classify and diagnose mental illness.

"The courts then were not really used to dealing with homosexuals and transsexuals," said Wojcik. "The judiciary [ today ] is simple much more sensitive to the power of language." Words like "faggot," for instance, "simply would not be heard in the courtroom today."

Finkle said that he expects the Supreme Court to decide on whether or not to hear the case by September or October. Foster, who is 67, is currently incarcerated at Big Muddy Correctional Center in Ina, Ill.

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